Supreme Court of California Justia
Docket No. S106273
People v. Seel


Filed 11/29/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S106273
v.
Ct.App. 2/7 B143771
WILLIAM HARLOW SEEL,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA044436

In 1996, we held that an allegation prescribing a greater punishment for an
attempt to commit murder that is “willful, deliberate, and premeditated” (Pen.
Code,1 § 664, subd. (a) (section 664(a)) constituted a penalty provision to which
double jeopardy protections do not apply. (People v. Bright (1996) 12 Cal.4th
652, 656-657 (Bright).) Several years later, in a case not involving double
jeopardy, the United States Supreme Court concluded that any fact other than a
prior conviction that increases punishment beyond the prescribed statutory
maximum “is the functional equivalent of an element of a greater offense than the

1
All further statutory references are to the Penal Code unless otherwise
noted.
1



one covered by the jury’s guilty verdict.” (Apprendi v. New Jersey (2000) 530
U.S. 466, 494, fn. 19 (Apprendi).)2
In light of Apprendi and related cases, we must decide whether double
jeopardy protections preclude a retrial of the premeditation allegation (§ 664(a))
after an appellate finding of evidentiary insufficiency. For reasons that follow, we
conclude that the federal double jeopardy clause (U.S. Const., 5th Amend.) bars
retrial.
I. FACTUAL AND PROCEDURAL BACKGROUND
This background is largely drawn from the Court of Appeal’s unpublished
opinion.
On May 1, 1999, around 11:00 p.m., John Park and three friends, Nathan
Yoshizaki, Leland Fong, and Eric Shing, went out for dinner. Yoshizaki drove the
group to a restaurant and parked his car in the parking lot. Defendant William
Harlow Seel and a female companion, Shanda Bustamante, left the restaurant and
got into defendant’s car. As defendant drove out of the parking lot, Park, who was
standing in front of the restaurant, heard gunfire, dropped to the ground, and took
cover on the right side of Yoshizaki’s car. Park and his friends had exchanged no
words or gestures with defendant or Bustamante. However, Park had glanced over
at defendant’s car more than once because he “heard the exhaust.” Yoshizaki’s
car had a bullet hole near the left headlight and the bumper. That was “essentially
. . . exactly where [Park] walked past” as he was going toward the restaurant.
At trial, defendant testified that when he parked his car in the restaurant’s
lot, Park and his friends drove up and parked one space away from him. One or
two of the men got out of their car, and defendant entered the restaurant to pick up

2
In other words, “Apprendi treated the crime together with its sentence
enhancement as the ‘functional equivalent’ of a single ‘greater’ crime. [Citation.]”
(People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith).)
2



Bustamante. The men started yelling, and defendant believed there was going to
be trouble. As defendant and Bustamante left the restaurant and walked toward
defendant’s car, defendant and the other males looked at each other. Defendant
became “increasingly fearful” because of the way the four men were looking at
him. He “just felt like something bad was going to happen.” As defendant drove
out of the parking lot and onto the street, he fired his gun “toward the air like
above their car, around that area.” He fired three rounds. He “felt kind of
paranoid and stuff.” He did not plan to shoot or kill Park and did not even know
him. Defendant said he kept the gun in his car for protection. He also testified
that he had smoked methamphetamine earlier that day and was not “thinking
clearly.”
A jury convicted defendant of the attempted premeditated murder of Park
(§§ 664(a), 187, subd. (a)) and found that he personally and intentionally
discharged a firearm. (§ 12022.53, subd. (c).) The trial court imposed a sentence
of life imprisonment with the possibility of parole, plus 20 years for the section
12022.53, subdivision (c), allegation. Defendant appealed.
Among other things, defendant argued that there was no substantial
evidence of premeditation or deliberation. The Court of Appeal agreed. It
concluded, “The finding of premeditation and deliberation, therefore, must be
reversed and the matter remanded for retrial on the penalty allegation. (See
People v. Bright (1996) 12 Cal.4th 652, 671.)”
We granted defendant’s petition for review, limited to the issue whether the
premeditation allegation (§ 664(a)) may be retried.
II. DISCUSSION
As relevant here, section 664(a) provides that a defendant convicted of
attempted murder is subject to a sentence of life with the possibility of parole if
the jury finds that the attempted murder was “willful, deliberate, and premeditated
3

murder, as defined in section 189.” (§ 664(a); see Bright, supra, 12 Cal.4th at p.
665.) Unless the jury finds this premeditation allegation to be true, a defendant
convicted of attempted murder is subject to a determinate sentence of five, seven,
or nine years. (§ 664(a).)
Defendant here argues that the Court of Appeal’s finding that the evidence
was insufficient to support the premeditation allegation (§ 664(a)) constituted an
acquittal for double jeopardy purposes, thus barring retrial. (See Burks v. United
States (1978) 437 U.S. 1 (Burks).) However, in Bright we held that section 664(a)
is a penalty provision to which double jeopardy protections do not apply. (Bright,
supra, 12 Cal.4th at p. 671.) Also, the high court, in affirming our decision in
People v. Monge (1997) 16 Cal.4th 826 (lead opn. of Chin, J.) (Monge I), held that
the double jeopardy clause does not bar retrial of a prior conviction allegation after
an appellate finding of evidentiary insufficiency. (Monge v. California (1998) 524
U.S. 721, 734 (Monge II).)
Defendant seeks support in Apprendi, supra, 530 U.S. 466, a sentence
enhancement case not involving double jeopardy. In Apprendi, the high court
held: “Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” (Id. at p. 490.) With respect to these
constitutional protections at least, the high court made clear that “[m]erely using
the label ‘sentence enhancement’ ” does not preclude treating the enhancement as
an element of an offense. (Apprendi, supra, 530 U.S. at p. 476.)
The question here is, does Apprendi affect our holding in Bright? Does
section 664(a), though designated a penalty provision (Bright, supra, 12 Cal.4th at
p. 669), constitute an element of an offense for double jeopardy purposes? (See
Apprendi, supra, 530 U.S. at p. 494, fn. 19.) For reasons that follow, we conclude
it does. Because the premeditation allegation (§ 664(a)) effectively placed
4

defendant in jeopardy for an “offense” greater than attempted murder (Apprendi,
supra, 530 U.S. at p. 494, fn. 19; see Monge II, supra, 524 U.S. at pp. 728-729),
the Court of Appeal’s finding of evidentiary insufficiency bars retrial of the
allegation under the federal double jeopardy clause. (Burks, supra, 437 U.S. at p.
16; U.S. Const., 5th Amend.)
A. Double jeopardy protections
The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 15 of the California Constitution guarantee that a
person may not be placed twice “in jeopardy” for the “same offense.” (See Bright,
supra, 12 Cal.4th at p. 660.) “The double jeopardy bar protects against a second
prosecution for the same offense following an acquittal or conviction, and also
protects against multiple punishment for the same offense. [Citations.]” (Ibid.) In
addition, because greater and lesser included offenses constitute the “same
offense” for double jeopardy purposes (ibid.), “a conviction of a lesser included
offense bars subsequent prosecution of the greater offense. [Citations.]” (Id. at p.
661.)
As noted above, the same protections generally do not extend to noncapital
sentencing proceedings, or at least not to those involving prior conviction
allegations. (Monge II, supra, 524 U.S. at pp. 728, 730; Monge I, supra, 16
Cal.4th 826; but see People v. Hernandez (1998) 19 Cal.4th 835 (Hernandez)
[hearing on an enhancement is not a court trial].) For purposes of double
jeopardy, the high court recognized in Monge II that an appellate finding that the
evidence was insufficient to sustain a conviction was “comparable to an acquittal”
and thus barred a second trial. (Monge II, supra, 524 U.S. at p. 729, citing Burks,
supra, 437 U.S. at p. 16.) However, it also concluded that “[w]here a similar
failure of proof occurs in a sentencing proceeding . . . the analogy is inapt.”
5

(Monge II, supra, 524 U.S. at p. 729; see also People v. Barragan (2004) 32
Cal.4th 236, 241.)
In reaching this conclusion, the high court emphasized that sentencing
determinations “do not place a defendant in jeopardy for an ‘offense,’ [citation].
Nor have sentence enhancements been construed as additional punishment for the
previous offense; rather, they act to increase a sentence ‘because of the manner in
which [the defendant] committed the crime of conviction.’ [Citations.] An
enhanced sentence imposed on a persistent offender thus ‘is not to be viewed as
either a new jeopardy or additional penalty for the earlier crimes’ but as ‘a
stiffened penalty for the latest crime, which is considered to be an aggravated
offense because a repetitive one.’ [Citations.]” (Monge II, supra, 524 U.S. at p.
728; but see id. at pp. 737-741 (dis. opn. of Scalia, J.) [arguing recidivism
enhancement constitutes an element of the offense].) “The Double Jeopardy
Clause ‘does not provide the defendant with the right to know at any specific
moment in time what the exact limit of his punishment will turn out to be.’
[Citation.] Consequently, it is a ‘well-established part of our constitutional
jurisprudence’ that the guarantee against double jeopardy neither prevents the
prosecution from seeking review of a sentence nor restricts the length of a
sentence imposed upon retrial after a defendant’s successful appeal. [Citations.]”
(Monge II, supra, 524 U.S. at p. 730.)
As discussed above, in 1996 we held that the double jeopardy prohibition
did not bar retrial of an allegation that an attempted murder was “willful,
deliberate, and premeditated” under section 664(a). (Bright, supra, 12 Cal.4th at
p. 671; see also id. at pp. 671-683 (dis. opn. of Mosk, J.); id. at pp. 683-693 (dis.
opn. of Kennard, J.).) In arguing that double jeopardy protections bar retrial on
the section 664(a) allegation in his case, defendant here contends that Bright,
supra, 12 Cal.4th 652, is distinguishable and that Burks, supra, 437 U.S. 1,
6

controls. He also maintains that Apprendi, supra, 530 U.S. 466, is relevant here,
even though it did not involve double jeopardy principles, because the penalty of
life imprisonment prescribed by section 664(a) increased his sentence beyond the
statutory maximum. We discuss these cases below.
B. Bright
In Bright, a jury convicted the defendant of attempted murder (§§ 189,
664), but was unable to make a finding on the separate allegation of premeditation.
(Bright, supra, 12 Cal.4th at p. 658.) The trial court declared a mistrial as to the
premeditation allegation and set the matter for retrial on the allegation. After the
court rejected his motion to dismiss the premeditation allegation based on
evidentiary insufficiency, defendant Bright moved to dismiss on the ground that he
already had been placed in jeopardy for the attempted premeditated murder
charge. (Id. at pp. 658-659.) He argued that the offense of attempted murder was
divided into first and second degrees. By alleging that the defendant “did
willfully, deliberately, and premeditatedly attempt to murder,” the information
charged him with first degree attempted murder. (Id. at p. 659.) Because the jury
found Bright guilty of attempted murder without specifying the degree, he argued
he was guilty of second degree attempted murder, a lesser offense included within
the offense of attempted premeditated murder. Thus, he asserted, double jeopardy
principles prohibited retrial of the greater offense of attempted premeditated
murder. (Ibid.)
We rejected defendant Bright’s underlying premise that attempted murder
was divided into degrees. (Bright, supra, 12 Cal.4th at pp. 665-669.) After
reviewing the statutory language and legislative history of section 664(a), we
concluded that for double jeopardy purposes, the premeditation allegation (§
664(a)) constituted a penalty provision and not an element of the crime. (Bright,
7

supra, 12 Cal.4th at p. 669.) “The jury does not decide the truth of the penalty
allegation until it first has reached a verdict on the substantive offense charged.
[Citation.] Accordingly, a defendant’s conviction of the underlying substantive
offense does not (on double jeopardy grounds) bar further proceedings, such as
retrial, on a penalty allegation. [Citation.] Thus, the circumstance that the jury
has returned a verdict on the underlying offense, but is unable to make a finding
on the penalty allegation, does not constitute an ‘acquittal’ of (or otherwise bar
retrial of) the penalty allegation on the ground of double jeopardy. [Citations.]”
(Id. at pp. 661-662.)
Defendant here maintains that Bright, supra, 12 Cal.4th 652, is
distinguishable because in that case, the trial court declared a mistrial after the jury
deadlocked on the section 664(a) penalty allegation. (Tibbs v. Florida (1982) 457
U.S. 31, 42 (Tibbs) [“A deadlocked jury . . . does not result in an acquittal barring
retrial under the Double Jeopardy Clause”].) Here, the Court of Appeal concluded
there was “no evidence” of premeditation and deliberation (§ 664(a)), reversed the
jury’s finding, and remanded the matter for retrial on the penalty allegation.
Relying on Burks, supra, 437 U.S. 1, and related cases, defendant asserts that a
reversal based on insufficient evidence is equivalent to an acquittal and thus
precludes retrial of the penalty allegation.
In Burks, the high court held that the double jeopardy clause precludes a
second trial after a conviction is reversed based solely on insufficient evidence.
(Burks, supra, 437 U.S. at p. 18.) Unlike a reversal for trial error, which “does not
constitute a decision to the effect that the government has failed to prove its case”
(id. at p. 15), a reversal based on evidentiary insufficiency “means that the
government’s case was so lacking that it should not have even been submitted to
the jury. Since we necessarily afford absolute finality to a jury’s verdict of
acquittal—no matter how erroneous its decision—it is difficult to conceive how
8

society has any greater interest in retrying a defendant when, on review, it is
decided as a matter of law that the jury could not properly have returned a verdict
of guilty.” (Id. at p. 16, italics omitted.) “A reversal based on the insufficiency of
the evidence has the same effect [as a judgment of acquittal] because it means that
no rational factfinder could have voted to convict the defendant.” (Tibbs, supra,
457 U.S. at p. 41.) Recognizing that the standard for determining legal
insufficiency is the same under federal and California law, we have held that the
“ ‘rule of Burks applies to trials conducted in our courts.’ [Citation.]” (People v.
Hatch (2000) 22 Cal.4th 260, 272.)
The Attorney General, however, maintains that double jeopardy protections
under Burks, supra, 437 U.S. 1, apply only to offenses and not to penalty
allegations, like section 664(a) here: “The decisions of the United States Supreme
Court and this Court have consistently recognized the clear distinctions between
substantive offenses and penalty allegations and the discrete protections extended
to those two different areas by the double jeopardy clause.” The Attorney General
argues that although the high court has extended the rights to a jury trial and to
proof beyond a reasonable doubt to any sentence enhancement that increases the
penalty beyond the statutory maximum (Apprendi, supra, 530 U.S. at p. 490), the
protections of the double jeopardy clause do not similarly extend to such sentence
enhancements. In other words, the Attorney General argues the rationale of
Monge II, and not that of Apprendi, controls this case.
In Monge II, the high court stated, “Sentencing decisions favorable to the
defendant . . . cannot generally be analogized to an acquittal. . . . The
pronouncement of sentence simply does not ‘have the qualities of constitutional
finality that attend an acquittal.’ [Citations.]” (Monge II, supra, 524 U.S. at p.
729.) As the Attorney General notes, the high court has consistently recognized
that reconsideration of certain noncapital sentencing issues does not violate double
9

jeopardy protections. (Monge II, supra, 524 U.S. at p. 730; Caspari v. Bohlen
(1994) 510 U.S. 383, 391 [“it [is] well established that there is no double jeopardy
bar to the use of prior convictions in sentencing a persistent offender”].) Based on
the foregoing, we disagree with defendant’s characterization that “nothing” in
Monge II, supra, 524 U.S. 721, refutes his claim that retrial of the premeditation
allegation (§ 664(a)) is barred under Burks, supra, 437 U.S. 1.
Nonetheless, for reasons that follow, we disagree with the Attorney General
that the rationale of Apprendi, supra, 530 U.S. 466, is irrelevant here, and
conclude that under Apprendi, the premeditation allegation (§ 664(a)) is subject to
the federal double jeopardy clause.
C. Apprendi
As noted above, Apprendi held that except for prior convictions, “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi,
supra, 530 U.S. at p. 490.)3 “The high court’s reasoning was this: The federal
Constitution requires the elements of a crime to be proved beyond a reasonable
doubt because they expose the defendant to punishment; likewise, the elements of
a sentence enhancement must be proved beyond a reasonable doubt if there is
exposure to increased punishment. [Citation.]” (Sengpadychith, supra, 26 Cal.4th

3
The high court recently extended the reach of Apprendi to hold that a judge
may impose a maximum sentence only if based on facts—even an aggravating fact
within a statutory maximum—supported by the jury’s verdict or admitted by the
defendant. (Blakely v. Washington (2004) __ U.S. __ [124 S.Ct. 2531]; but see
United States v. Booker (7th Cir. 2004) 375 F.3d 508, cert. granted Aug. 2, 2004,
No. 04-104 [presenting the issue whether the federal sentencing guidelines violate
the Sixth Amend. because a judge determines the facts to enhance a sentence];
United States v. Fanfan (D.Me. 2004) 2004 U.S. Dist. Lexis 18593 [2004 WL
1723114], cert. granted Aug. 2, 2004, No. 04-105 [same].) For purposes of the
issue presented here, the high court’s recent holding does not change our analysis
under Apprendi.
10



at p. 325.) The high court’s authority in Apprendi dated from In re Winship
(1970) 397 U.S. 358: “Since Winship, we have made clear beyond peradventure
that Winship’s due process and associated jury protections extend, to some degree,
‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to
the length of his sentence.’ [Citation.]” (Apprendi, supra, 530 U.S. at p. 484.)
Examining the differences between a “sentencing factor”4 and an element
of an offense (Apprendi, supra, 530 U.S. at p. 494 & fn. 19), the high court
recognized the “constitutionally novel and elusive distinction between” the two.

4
The high court defined a sentencing factor, in contrast to a sentence
enhancement, as “a circumstance, which may be either aggravating or mitigating
in character, that supports a specific sentence within the range authorized by the
jury’s finding that the defendant is guilty of a particular offense.” (Apprendi,
supra, 530 U.S. at p. 494, fn. 19.)
In
Sengpadychith, supra, 26 Cal.4th at page 325, we recognized that this
court in People v. Wims (1995) 10 Cal.4th 293 (Wims), “concluded that the
California Legislature intended all statutory enhancements to be sentencing factors
. . . . [Citation.]” Wims was based primarily on McMillan v. Pennsylvania (1986)
477 U.S. 79, 85-91 (McMillan), which held that there is no federal constitutional
right to a jury determination of a “sentencing factor.” Because the high court did
not overrule McMillan (Apprendi, supra, 530 U.S. at p. 487, fn. 13), we
concluded, “Wims survives as to sentence enhancement provisions that do not
increase the statutorily prescribed maximum penalty for the underlying crime.”
(Sengpadychith, supra, 26 Cal.4th at p. 326.)

Indeed, with respect to the premeditation allegation (§ 664(a)), we
recognized that “strictly speaking this portion of section 664 does not constitute an
‘enhancement’ within the meaning of rule 405(c) of the California Rules of Court,
which defines ‘enhancement’ as ‘an additional term of imprisonment added to the
base term,’ because this statutory provision establishes an increased base term for
the crime of attempted murder upon a finding of specified circumstances.”
(Bright, supra, 12 Cal.4th at p. 656, fn. 2.) For purposes of the issue presented
here, the precise distinction between a sentence enhancement and penalty
provision is not important. (But see Robert L. v. Superior Court (2003) 30 Cal.4th
894, 899-900.) The critical feature is that section 664(a) is “an allegation of a
circumstance that justifies an increased sentence . . . .” (Bright, supra, 12 Cal.4th
at p. 656, fn. 2.)
11



(Id. at p. 494, citing McMillan, supra, 477 U.S. at p. 86.) However, it emphasized
that “the relevant inquiry is one not of form, but of effect—does the required
finding expose the defendant to a greater punishment than that authorized by the
jury’s guilty verdict?” (Apprendi, supra, 530 U.S. at p. 494.) “The degree of
criminal culpability the legislature chooses to associate with particular, factually
distinct conduct has significant implications both for a defendant’s very liberty,
and for the heightened stigma associated with an offense the legislature has
selected as worthy of greater punishment.” (Id. at p. 495.) “[W]hen the term
‘sentence enhancement’ is used to describe an increase beyond the maximum
authorized statutory sentence, it is the functional equivalent of an element of a
greater offense than the one covered by the jury’s guilty verdict.” (Id. at p. 494,
fn. 19.)
The Attorney General maintains that any argument based on Apprendi,
supra, 530 U.S. 466, “would be logical only if the jury trial and the standard of
proof guarantees of the Sixth Amendment were designed to provide the same
protections as the double jeopardy clause of the Fifth Amendment.” However, the
high court has indicated that the principles underlying the double jeopardy clause
on the one hand, and the reasonable doubt burden of proof and right to jury trial on
the other, are not wholly distinct. (Almendarez-Torres v. United States (1998) 523
U.S. 224, 247 (Almendarez-Torres); see also Sattazahn v. Pennsylvania (2003)
537 U.S. 101, 111 (lead opn. of Scalia, J.) [“We can think of no principled reason
to distinguish, in this context, between what constitutes an offense for purposes of
the Sixth Amendment’s jury-trial guarantee and what constitutes an ‘offence’ for
purposes of the Fifth Amendment’s Double Jeopardy Clause”]; Monge II, supra,
524 U.S. at p. 738 (dis. opn. of Scalia, J.).)
In
Almendarez-Torres, the high court held that a recidivism statute that
increased the maximum penalty from two to 20 years was a penalty provision and
12

not a separate crime. (Almendarez-Torres, supra, 523 U.S. at pp. 226, 235.) The
court rejected defendant Almendarez-Torres’s argument that it should “adopt a
rule that any significant increase in a statutory maximum sentence would trigger a
constitutional ‘elements’ requirement.” (Id. at p. 247.) In doing so, the high court
stated that it would “find it difficult to reconcile any such rule with our precedent
holding that the sentencing-related circumstances of recidivism are not part of the
definition of the offense for double jeopardy purposes. [Citation.]” (Ibid., italics
added.) Indeed, the high court recognized that some of its decisions, taken
together, may stand “for the broad proposition that sometimes the Constitution
does require (though sometimes it does not require) the State to treat a sentencing
factor as an element.” (Id. at p. 242.)
The Attorney General also emphasizes that the protections outlined in
Apprendi are designed to reduce the risk of convicting a defendant erroneously.
(See Apprendi, supra, 530 U.S. at p. 484.) The Attorney General maintains that
double jeopardy protections, in contrast, are primarily to preclude successive
prosecutions to the embarrassment and expense of the defendant. (See Hernandez,
supra, 19 Cal.4th at p. 850 (dis. opn. of Brown, J.) [“the double jeopardy clause
preserves and protects interests distinct from . . . the presumption of innocence and
the right to jury trial”].)
Contrary to the Attorney General’s suggestion, the double jeopardy clause
is also intended to reduce the risk that a defendant will be convicted in error.
(Monge II, supra, 524 U.S. at p. 732 [“need for reliability accords with one of the
central concerns animating the constitutional prohibition against double
jeopardy”].) “[T]he Double Jeopardy Clause prevents States from ‘mak[ing]
repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to live
in a continuing state of anxiety and insecurity, as well as enhancing the possibility
13

that even though innocent he may be found guilty.’ [Citation.]” (Ibid., italics
added.)5
Based on the foregoing, we conclude that Apprendi is relevant to
determining whether a finding of evidentiary insufficiency (Burks, supra, 437 U.S.
at p. 16) bars retrial of a premeditation allegation (§ 664(a)).
D. Analysis under the Apprendi rationale
If a trier of fact finds the premeditation allegation (§ 664(a)) true, a
defendant’s sentence for attempted murder increases from a determinate term of
five, seven, or nine years to an indeterminate life term with the possibility of
parole. (§ 664(a).) By “expos[ing] the defendant to a greater punishment than that
authorized by the jury’s guilty verdict” (Apprendi, supra, 530 U.S. at p. 494),
section 664(a) is “the functional equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict.” (Apprendi, supra, at p. 494, fn. 19.)
Indeed, in contrast to a doubled sentence (id. at pp. 468-469; Monge I, supra, 16
Cal.4th at p. 831), or even an 18-year addition to a two-year sentence
(Almendarez-Torres, supra, 523 U.S. at p. 226), the potential increase here is quite
substantial.
Significantly, unlike the sentence enhancements at issue in Monge I, supra,
16 Cal.4th 826, and Almendarez-Torres, supra, 523 U.S. 224, section 664(a) does
not involve a defendant’s recidivism, which is “a traditional, if not the most
traditional, basis for a sentencing court’s increasing an offender’s sentence.
[Citations.]” (Almendarez-Torres, supra, 523 U.S. at p. 243; see also Apprendi,

5
People v. Hernandez (2003) 30 Cal.4th 1 does not aid the Attorney
General. In that case, we explained that “generally, the double jeopardy guarantee
imposes no limitation on the power to retry a defendant who has succeeded in
having his conviction set aside on appeal on grounds other than insufficiency of
evidence
.” (Id. at p. 6, italics added.) Here, we are dealing with a double jeopardy
claim based on an evidentiary insufficiency.
14



supra, 530 U.S. at p. 488.) The high court has made clear that recidivism is
different for constitutional purposes. (See, e.g., Apprendi, supra, 530 U.S. at pp.
488, 490, 496; Monge II, supra, 524 U.S. at p. 728.) We have also made this
difference clear. (Monge I, supra, 16 Cal.4th at p. 838.) In rejecting the argument
that a failure of proof on a prior conviction allegation was like an acquittal at the
guilt phase of a criminal trial, we noted in Monge I that “a prior conviction trial is
simple and straightforward as compared to the guilt phase of a criminal trial.
Often it involves only the presentation of a certified copy of the prior conviction
along with the defendant’s photograph and fingerprints. In many cases,
defendants offer no evidence at all, and the outcome is relatively predictable.”
(Ibid.)
In contrast to a prior conviction allegation, a section 664(a) allegation
requires the trier of fact to determine whether “the attempted murder was willful,
deliberate, and premeditated” before imposing the term of life imprisonment with
the possibility of parole. “The defendant’s intent in committing a crime is perhaps
as close as one might hope to come to a core criminal offense ‘element.’ ”
(Apprendi, supra, 530 U.S. at p. 493.) Applying the rationale of Apprendi to this
case, we conclude that “[w]hereas recidivism ‘does not relate to the commission of
the offense’ itself, [citation], [section 664(a)’s] inquiry goes precisely to what
happened in the ‘commission of the offense.’ ” (Apprendi, supra, 530 U.S. at p.
496.) Apprendi compels the conclusion that section 664(a) constitutes an element
of the offense. (Apprendi, supra, 530 U.S. at p. 494, fn. 19.)
In arguing that the double jeopardy clause does not bar retrial here, the
Attorney General seeks support in Hernandez, supra, 19 Cal.4th 835. In
Hernandez, we rejected the argument that Monge II, supra, 524 U.S. 721, was
distinguishable because it dealt with a prior conviction allegation, and not an
allegation that turned on the characterization of the present offense. (Hernandez,
15

supra, 19 Cal.4th at pp. 840, 842.) “The high court spoke categorically in Monge,
concluding that the federal double jeopardy clause does not apply to noncapital
sentencing determinations and making no distinction between sentencing retrials
that turn on the facts of the present offense and sentencing retrials that turn on the
truth of the prior conviction allegation. (Monge, supra, 524 U.S. at p. [724].)”
(Hernandez, supra, 19 Cal.4th at p. 840.) We also stated that if, on remand, “the
Court of Appeal concludes that proof of specific intent is necessary [as an element
of a serious felony under sections 1192.7, subdivision (c)(8), and 667, former
subdivision (a)], the state and federal double jeopardy protections do not preclude
retrial of that issue.” (Hernandez, supra, 19 Cal.4th at p. 843.)
But Hernandez predated Apprendi, and it must be read in light of that
decision. In Hernandez, we recognized that federal constitutional law may dictate
that a sentence enhancement be treated as an element of an offense. We ultimately
concluded, however, that in that case the prior conviction enhancement should not
be treated as such. (Hernandez, supra, 19 Cal.4th at pp. 840-842.) Apprendi now
compels the conclusion that the premeditation allegation (§ 664(a)) constitutes an
element of an offense. (See ante, at pp. 10-16.) As we have explained above,
section 664(a) is not a typical sentencing determination, like a prior conviction
allegation, to which double jeopardy protections do not apply. (See Hernandez,
supra, 19 Cal.4th at p. 842.)
As noted above, defendant argues that Bright, supra, 12 Cal.4th 652, is
distinguishable. (See ante, at p. 8.) Unlike the situation here, where the Court of
Appeal reversed the judgment based on its determination of evidentiary
insufficiency, the jury in Bright was “unable to make a finding on the
premeditation allegation.” (Bright, supra, 12 Cal.4th at p. 658.) Neither a court
nor a jury made a determination that the prosecution failed to prove its case.
Significantly, “[a] mistrial does not constitute a termination of jeopardy, and
16

accordingly double jeopardy does not arise from the legal necessity of a mistrial.
[Citation.]” (Id. at p. 662.) This difference in procedural postures distinguishes
Bright from the case here.6 (United States v. DiFrancesco (1980) 449 U.S. 117,
130-131 [federal double jeopardy clause bars retrial for evidentiary insufficiency
but not for mistrial due to “manifest necessity”].)
The Court of Appeal here found there was “no evidence” of defendant’s
deliberation or premeditation in his attempt to commit murder. Because the
section 664(a) allegation effectively placed defendant in jeopardy for an “offense”
(Apprendi, supra, 530 U.S. at p. 494, fn. 19), the Court of Appeal’s determination
of evidentiary insufficiency bars retrial of the allegation under the federal double
jeopardy clause.7 (U.S. Const., 5th Amend.; Burks, supra, 437 U.S. at p. 16.)
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.

6
To the extent our analyses in Bright, supra, 12 Cal.4th 652, and Hernandez,
supra, 19 Cal.4th 835, conflict with intervening high court decisions as discussed
herein, they are no longer controlling.
7
Because we conclude that retrial of the premeditation allegation (§ 664(a))
is barred under the federal double jeopardy clause, we do not discuss whether
retrial would be barred under the state double jeopardy clause (Cal. Const., art. I, §
15) or under principles of estoppel or law of the case.
17




CONCURRING OPINION BY KENNARD, J.

I join the majority, whose central holding now embraces a view I
articulated in a dissenting opinion eight years ago.
In
People v. Bright (1996) 12 Cal.4th 652, a majority of this court held that
a finding that an attempted murder was committed willfully, deliberately, and
premeditatedly was merely a penalty provision, not an element of a crime greater
than attempted murder. I dissented, suggesting that the federal Constitution may
well guarantee the right to a jury trial even if premeditation was “merely a
circumstance affecting the penalty for attempted murder.” (Id. at p. 692 (dis. opn.
of Kennard, J.).) I noted that such a premeditation finding “will expose the
defendant to a penalty of life imprisonment, as compared with a maximum term of
nine years for attempted murder without premeditation.” (Ibid.) Thus, I said, it
might “well be unconstitutional to deprive the defendant of a right to jury trial on
the issue of premeditation.” (Ibid.) The correctness of that view has now been
confirmed by the recent decision of the United States Supreme Court in Apprendi
v. New Jersey (2000) 530 U.S. 466, which in turn compels the result in this case.
KENNARD,
J.
1





CONCURRING OPINION BY BROWN, J.

On more than one occasion, I have expressed the view that double jeopardy
principles most likely extend to certain fact-bound sentencing enhancements. (See
People v. Hernandez (1998) 19 Cal.4th 835, 848-850 (dis. opn. of Brown, J.);
People v. Monge (1997) 16 Cal.4th 826, 845-847 (conc. opn. of Brown, J.).) Even
without the impetus of Apprendi v. New Jersey (2000) 530 U.S. 466, it was only a
matter of time until we confronted a circumstance where the Legislature has
effectively recharacterized an element of a substantive crime, ostensibly removing
it from the purview of the double jeopardy clause by labeling it a sentencing
factor. (See Monge v. California (1998) 524 U.S. 721, 737-741 (dis. opn. of
Scalia, J.).)
Because that circumstance is plainly here, I fully agree with the conclusion
the rule of Burks v. United States (1978) 437 U.S. 1 extends to the Court of
Appeal’s finding that the evidence was insufficient to establish defendant’s
attempted murder was “willful, deliberate, and premeditated” under Penal Code
section 664, subdivision (a). A simple factual change demonstrates the
correctness of that determination: Had the victim died and defendant been
convicted of first degree murder pursuant to Penal Code section 189, Burks would
clearly preclude retrial of that charge if an appellate court found the same
evidentiary deficiency. The difference is that with respect to attempted murder,
the Legislature has—arbitrarily, one might argue—designated the “willful,
deliberate, and premeditated” finding as the ultimate sentencing determinant,
rather than—as with actual murder—as the preliminary determinant of the degree
of the crime, which in turn sets the defendant’s sentence. While Penal Code
1



section 664, subdivision (a), may not be as stark an example of legislative
overreaching as that hypothesized by Justice Scalia in his dissent in Monge v.
California, supra, 524 U.S. at page 738, the constitutional implications, both
federal and state, are no less self-evident.
BROWN, J.

2


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Seel
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 3/21/02 - 2d Dist., Div. 7
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S106273
Date Filed: November 29, 2004
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert C. Gustaveson*

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Robert F. Katz, Donald E. De Nicola and Robert C. Schneider,
Deputy Attorneys General, for Plaintiff and Respondent.

*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
1



Counsel who argued in Supreme Court (not intended for publication with opinion):

Dennis A. Fischer
Law Offices of Dennis A. Fischer
1448 Fifteenth Street, Suite 206
Santa Monica, CA 90404
(310) 451-4815

Robert C. Schneider
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2059

2


Opinion Information
Date:Docket Number:
Mon, 11/29/2004S106273

Parties
1Seel, William (Defendant and Appellant)
Represented by Dennis A. Fischer
Attorney At Law
1448 Fifteenth Street, Suite 206
Santa Monica, CA

2The People (Plaintiff and Respondent)
Represented by Robert Carl Schneider
Office of the Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA


Disposition
Nov 29 2004Opinion: Reversed

Dockets
Apr 26 2002Petition for review filed
  counsel for appellant SEEL
Apr 29 2002Record requested
 
Apr 30 2002Received Court of Appeal record
  one doghouse
Jun 12 2002Petition for Review Granted; issues limited (criminal case)
  The issues to be briefed and argued shall be limited to whether retrial of a premeditation allegation pertaining to attempted murder is barred by double jeopardy principles after a reversal based on insufficiency of the evidence; whether People v. Bright (1996) 12 Cal.4th 652 survives Apprendi v. New Jersey (2000) 530 U.S. 466. Votes: George, CJ., Kennard, Chin, Brown and Moreno, JJ.
Jun 13 2002Order filed
  The second paragraph of the order filed on June 12, 2002, is hereby modified to read, in its entirety: "The issue to be briefed and argued shall be limited to whether the double jeopardy clause of the Fifth Amendment to the United States Constitution and/or the double jeopardy clause of section 15 of article I of the California Constitution bar retrial of an allegation that an attempted murder was willful, deliberate, and premeditated (Pen. Code, Section. 664, subd.(a)) after vacation of a finding to that effect based on the insufficiency of the evidence."
Jun 17 2002Second Record Request
  for the rest of the record
Jun 26 2002Received Court of Appeal record
  one remaining doghouse sent overnight.
Jul 9 2002Request for extension of time filed
  (faxed) by appellant to file the Opening Brief on the Merits to and incuding 9/10/2002. Order prepared -- granted to 9/10/2002.
Jul 12 2002Extension of time granted
  to 9-10-02 for Aplt. to file the opening brief on the merits.
Sep 6 2002Request for extension of time filed
  (Second) by Appellant to file the opening brief on the merits to 10/30/2002 . Order prepared -- extension granted ONLY to and including 10/10/2002.
Sep 10 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including 10/30/2002.
Oct 28 2002Request for extension of time filed
  (Third) by appellant for a final extension of time to 11-27-2002, to file the opening brief/merits.
Oct 30 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 14, 2002. No further extensions of time are contemplated.
Nov 14 2002Request for extension of time filed
  for a last extension to 11/27/2002, to file Appellant's Opening Brief on the Merits. Order prepared - E.O.T. granted to 11/27/2002. No further E.O.T.'s will be granted.
Nov 15 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Openint Brief On The Merits is extended to and including November 27, 2002. No further extensions of time will be granted.
Dec 2 2002Opening brief on the merits filed
  by counsel for aplt. (timely per CRC 40k)
Dec 26 2002Request for extension of time filed
  counsel for resp (Attorney General) request to Jan. 25, 2003 (Sat.)?? to file respondent's brief/merits faxed to sf
Dec 31 2002Received:
  Fax from L.A. Office -- respondent's E.O.T. to 1/25/2003, to file the answer brief/merits.
Jan 6 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including January 25, 2003.
Jan 21 2003Request for extension of time filed
  respondent's answer brief/merits -to- 2-24-03 faxed to SF.
Jan 22 2003Received:
  Fax from the L.A. Office an E.O.T. request (second) by the Attorney General for an additional 30 days to 2/24/2003 within which to file the answer brief/merits. E.O.T. granted as requested -- order prepared
Jan 24 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including February 24, 2003.
Feb 18 2003Request for extension of time filed
  to file Respondent's Brief - asking to March 26, 2003 .
Feb 21 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including March 26, 2003. No further extensions are contemplated.
Feb 24 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including March 26, 2003. No further extensions of time are contemplated.
Mar 21 2003Request for extension of time filed
  to file respondent's answer brief/merits. asking to: April 25 ,2003.
Mar 21 2003Received:
 
Mar 24 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Answer Brief on the Merits is extended to and including April 25, 2003. No further extensions of time will be granted.
Apr 25 2003Answer brief on the merits filed
  respondent's
May 19 2003Request for extension of time filed
  by aplt to file the reply brief on the merits, to 6/16.
May 21 2003Extension of time granted
  Time to serve and file aplt's reply brief on the merits is extended to and including 6-16-03.
May 27 2003Telephone conversation with:
  Attorney Dennis Fischer will be out of the country from August 9 - 23, 2003.
Jun 17 2003Reply brief filed (case fully briefed)
  by counsel for appellant Seel. CRC40k/FedEx.
Aug 4 2003Received letter from:
  Dennis A. Fischer, counsel for appellant (Seel) dated 8-1-2003, advising he will be out of the country and his office will be closed during the second and third weeks of August.
Aug 11 2004Case ordered on calendar
  9-9-04, 9am, S.F.
Aug 30 2004Filed:
  Respondent's additional authorities.
Sep 2 2004Filed:
  Additional Authorities>>appellant Seel
Sep 7 2004Received:
  (faxed copy) Letter (correcting letter of September 2, 2004) re additional citation.
Sep 9 2004Cause argued and submitted
 
Sep 9 2004Filed:
  appellant's corrected letter re: citation for oral argument filed 9-2-04
Nov 8 2004Received:
  letter from Attorney Dennis A. Fischer.
Nov 29 2004Opinion filed: Judgment reversed
  Opinion by: Chin, J. -----joined by : George, C.J., Kennard, Baxter, Werdegar, & Moreno, JJ. Concurring opinion by : Kennard, J. Concurring opinion by : Brown, J.
Dec 30 2004Remittitur issued (criminal case)
 
Jan 5 2005Received:
  receipt for remittitur CA 2/7.
Jan 10 2005Returned record
 

Briefs
Dec 2 2002Opening brief on the merits filed
 
Apr 25 2003Answer brief on the merits filed
 
Jun 17 2003Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website